​The Disciplinary Process is a process which allows Organisations to address issues of misconduct, and serious misconduct, in an informal or formal manner. The Disciplinary Process is a staged process, consisting firstly of an informal approach, and should this be ineffective, or inappropriate in a given set of circumstances, the formal process should commence. The Disciplinary policy should aim to be corrective rather than punitive where appropriate. Prior to entering into the formal stage of a Disciplinary Process an Organisation should always take a step back, and consider if there is anything else which needs to happen prior to summoning an Employee to a disciplinary hearing, or suspending an Employee. An Organisation should always refer to their own Disciplinary policy as this should define what procedure they are committed to follow.

In certain instances, the Organisation will need to separate the investigation from the disciplinary hearing process, and establish the facts of an allegation / alleged incident in order to ascertain whether there is the need for a disciplinary hearing. Unless there is evidence of an Employee’s alleged wrongdoing, which presents the need for an Organisation to revert to the disciplinary policy, such as having witnesses to an alleged event, in a lot of cases, an Organisation may need to carry out an investigation into the allegations in order to establish the facts. It is important to bear in mind that in the case of a certain amount of allegations or alleged instances made against an Employee that a disciplinary hearing will suffice as long as the principles of natural justice are adhered to, and there is a transparent process followed, such as for lateness or absences. Organisations must be cognisant of the fact that an investigation to establish facts, and the holding of a disciplinary hearing process, may result in two very different outcomes. One outcome is that the facts have been established, and there is now a need to hold a disciplinary hearing, which may lead to a disciplinary sanction. The second is that there is not enough evidence to support an allegation against an Employee and there is no disciplinary hearing required.

Investigation

Where there is a dispute of the facts or differing versions of an incident, it is prudent for an Organisation to carry out an investigation in order to establish whether there is reasonable evidence to initiate the disciplinary process. The Organisation should appoint an Investigator, this may be a person internal to the Organisation, such as a Manager or a Director, but may also be an external Investigator, appointed to examine the evidence, and conclude with a finding(s). If the investigation concludes/ finds that the allegations were founded, in line with the principles of natural justice, the Investigator who carries out the initial investigation should then step back from the process and allow a Senior Member of Management review the findings, carry out a disciplinary hearing (if required following the investigation), and ultimately make a decision as to if a disciplinary sanction is required.

​Whilst there is a strong possibility of a certain level of communication between an Investigator and the ultimate decision-maker, this should be restricted in so far as is possible in order to safeguard the integrity of the process. In a small Organisation, it may not be possible to limit contact between 2 parties to this extent in the day to day running of an Organisation. It may in certain cases be more appropriate to appoint an External Investigator to investigate, where an Organisation is small in nature, or the allegations are complex.

To summarise, whilst it is not always necessary to separate out the investigation process and the disciplinary hearing process, Organisations must ensure that all relevant facts are clear and provide same to the Employee in writing, regardless of whether beginning with an investigation or proceeding immediately to the disciplinary hearing. The principles of natural justice must be adhered to in every process. Where an investigation leads to no further action being taken by the Organisation, where evidence is insufficient, or it has been found that there is no case to answer for, the accused Employee should always be notified of this. Organisations should always reference their own disciplinary policy and procedure first, before taking any action against an Employee. It is opportune to review your disciplinary policy and procedure when there are no live issues to ensure not only it is aligned to S.I. 146/ 2000, but that the procedure to be followed is clear, logical and adheres to the rules of natural justice. ​